IPOL
DIRECTORATE-GENERAL FOR INTERNAL POLICIES
EGOV
ECONOMIC GOVERNANCE SUPPORT UNIT
BRIEFING
Third-country equivalence in EU banking legislation
This briefing focuses on the concept of equivalence in EU banking legislation and notably on the difference
between “passporting” rights and “third-country equivalence” rights. It gives an overview of existing
equivalence clauses in some key EU banking and financial legislation and of equivalence decisions adopted
by the European Commission to date. The briefing may be updated pending new developments (previous
versions were published on 7 November 2016 and on 9 December 2016). The present update takes into account
the Commission Staff Working Document: ‘EU equivalence decisions in financial services policy: an
assessment’ published on 27/02/2017.
What is the difference between ‘passport’ and ‘equivalence’?
The principle of free movement of services stems from the Treaty. It has been further specified in EU
secondary law where the concept of ‘passport’ has gradually emerged. In the field of banking and
other financial services, the passport gives banks in the EU the right to provide financial services
throughout the EU, under the license granted by their home country and under the home country
supervision. The passport relies on two elements: i) a set of prudential requirements harmonised under
EU law; and ii) mutual recognition of licenses.
The EU passport is particularly well-established in banking services. Passporting rights for banking
activities were formalised into EU law by the second banking directive in 1989. The banking passport
allows banks to provide banking services throughout the EU, either directly from their home country
or via branches established in another Member State that do not require the authorization of the host
Member States. Under the EU passport regime, there is no need to open a fully-fledged local
subsidiary to provide banking services in another Member State. Subsidiaries are separate legal
entities subject to host country licensing and supervision that have to meet capital requirements on a
solo basis. Using passporting rights to operate branches is more time and cost effective. EU Member
States have full access to the Single Market and benefit from all passporting rights. Beyond the EU,
passporting rights are only available to members of the European Economic Area (See Box 1).
Box 1: The European Economic Area (EEA)
The Agreement on the EEA entered into force on 1 January 1994. It brings together the EU Member States
and Iceland, Liechtenstein and Norway in a single market. It is based on the principle that all the EU
legislation that is relevant to the Agreement should be implemented by EEA members. It covers the four
freedoms, i.e. the free movement of goods, capital, services and persons, plus competition and state aid
rules and horizontal areas related to the four freedoms
The EEA Agreement does not cover the following EU policies: common agriculture and fisheries policies;
customs union; common trade policy; common foreign and security policy; justice and home affairs; direct
and indirect taxation; or economic and monetary union.
The EEA States contribute to the EU operational costs (alongside Switzerland, which is part of the
European Free Trade Association - EFTA). In 2015, the total contribution of the EFTA members to the EU
amounted to EUR 421 million, an increase by EUR 30 million compared to 2014.
7 March 2017
Contact: [email protected]
Authors: A. Duvillet-Margerit, M. Magnus, B. Mesnard and A. Xirou
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To date, there is no precedent of passporting rights without full membership of the EU or acceptance
of all relevant EU rules and regulations (EEA model). The EU passport as such is not available to
financial institutions established in “third-countries” (i.e. a country not being part of the EU or the
EEA).
However third countries are entitled to ask for the so-called “equivalence” treatment by the EU. As
opposed to the EU passport, the concept of third country equivalence is a much more piecemeal
approach (See Box 2). Equivalence can only be requested by third countries where it is explicitly
provided for in EU legislation (since it is not available with respect to the provision of all services, or
the servicing of all client types). Equivalence provisions are tailored to the needs of each specific act
and their meaning varies from one legal text to another. Equivalence is assessed by the Commission.
Theoretically equivalence can be withdrawn at any time (although there is no precedent so far).
Box 2: Passport vs equivalence
Legal base
Rights granted
Beneficiary
Length
PASSPORT
EU Treaty + secondary law
Free provision of financial services
Institutions established in EU
Member States and EEA
Permanent
EQUIVALENCE
EU secondary law
Narrowly defined in the relevant articles
Institutions established in Third-country
(following assessment by COM)
Can be withdrawn
Source: EGOV 2016
According to the European Commission, equivalence clauses are made for the mutual benefit of both
EU and third country financial markets and institutions. As underlined in the recitals of the relevant
legislative acts, equivalence clauses support three objectives:
 they reduce or even eliminate overlaps in regulatory compliance for the EU and/or the
third-country entities concerned,
 they lead to considering certain services / products / activities of third countries’ firms
as acceptable for the various regulatory purposes in the EU,
 they allow to apply a less burdensome prudential regime in relation to EU financial
institutions’ exposures to an equivalent third country.
Equivalence is therefore often conditional on reciprocity by the third-country. For businesses and
countries not governed by an equivalence regime, third country institutions or service providers must
file for authorisation by the competent supervisor in each Member State where they plan to operate.
Equivalence clauses in EU banking legislation
Whether or not equivalence is available -and what it implies- varies across EU legislations. In some
cases, the legislation includes a “third country regime” which allows non-EEA firms to provide
services into the EEA if their home country regulatory regime is “equivalent” to EU standards. In
most cases, equivalence clauses serve other limited purposes (e.g. risk-weights to be applied by EU
financial institutions to exposures to third-country firms for the calculation of prudential ratios).
As explained in the Commission Staff Working Document ‘EU equivalence decisions in financial
services policy: an assessment’ (SWD) published on 27/02/2017: ‘Equivalence decisions in a few
areas may enhance the possibilities of doing business in the EU (e.g. investment firms under MIFID
II), but the equivalence as such serves primarily prudential regulatory purposes and is a tool to
reduce overlaps in compliance in the interest of EU markets’. Overall, if wholesale financial services
may benefit from passport-like rights under equivalence clauses in specific cases, this is never
provided for retail financial activities. It is noteworthy that the Capital Requirements Directive and
Regulation (CRD IV/CRR) do not provide any passport-like rights for third countries, even for
wholesale banking business. CRD IV/CRR equivalence is limited to the prudential treatment of
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certain types of exposures to entities located in non-EU countries. It allows EU based institutions to
apply preferential risk weights to the relevant exposures in third countries whose prudential
supervisors and requirements are deemed equivalent to the EU by the Commission. CRR equivalence
clauses are irrelevant in terms of EU market access for third country firms.
An overview of equivalence clauses available in EU key banking and financial legislation can be
found in Table 11. For a more detailed analysis, see table in the Annex.
Table 1: Overview of equivalence clauses in key EU financial legislation
Financial
service
EU legislation
Are there
equivalence
clauses?
Do they grant access to
the Single Market
(‘passport-like’)?
Banking
MIFID/MIFIR
(investment services and activities)
YES
YES, PARTIALLY
(If equivalence is
granted, third-country
firms can operate
anywhere in the EU to
serve professional
clients)
CRD IV/CRR
(wholesale and retail commercial
banking
YES
NO
(equivalence only covers
the prudential treatment
of exposures to foreign
institutions)
AIFMD
(Non-UCITS
Funds marketed to professional
clients)
YES
YES
(possibility of extending
the passport to non-EU
fund managers – based
on “positive advice”
from
ESMA)
UCITS
(EU-domiciled funds
marketed to retail clients
NO
NO
Insurance
Solvency II
(insurance and re-insurance
activities)
YES
YES, PARTIALLY
(if equivalence granted,
passport-like rights for
reinsurance companies
only)
Market
infrastructure
EMIR
(central clearing counterpartiesCCPs)
YES
YES
(if equivalence is
granted, passport-like
rights for central
clearing counterpartiesCCP)
Asset
Management
Source: European Commission 2016, EGOV
1
It is to be noted that table 1 and the annex focus on equivalence provisions in a number of selected key pieces of EU legislation MIFID, MIFIR, CRDIV/CRR, Solvency II and EMIR. Other types of provisions concerning third countries exist (e.g. recognition of
third country resolution proceedings under the Bank Recovery and Resolution Directive or equivalent deposit guarantee protection
under Article 15 of the Deposit Guarantee Schemes Directive).
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Assessing equivalence
The European Commission (DG FISMA) is responsible for carrying out technical assessments of
equivalence. These are sometimes based on advice from the three European Supervisory Authorities
(EBA, EIOPA, and ESMA). The above mentioned Commission Staff Working Document (SWD)
gives an overview of the process followed by the Commission to assess the equivalence. As explained
in the SWD, equivalence provisions typically require verification by means of an assessment that a
third-country framework is equivalent to the EU regime in the following aspects:
i) the requirements under assessment are legally binding;
ii) they are subject to effective supervision by local authorities;
iii) they achieve the same results as EU rules.
If equivalence provisions set the criteria according to which the Commission’s assessment should be
conducted, they also confer to the Commission discretion whether to grant equivalence or not. Third
countries can express an interest in being assessed but the Commission is under no obligation to act.
Assessments of equivalence involve a close exchange of information with third-country competent
authorities. Equivalence decisions usually take the form of an implementing act. While the European
Parliament has no formal role in the adoption of equivalence decisions, its observers are invited to
the meetings of the so-called Regulatory Committee -composed of representatives of Member Stateswhich examines the Commission draft decision on equivalence. The decision may specify whether
equivalence is granted in full or partially, for an indefinite period until withdrawal or with a time
limit.
Following an equivalence decision under some regulations (e.g. EMIR, MIFIR), individual firms
have to apply for recognition from European Securities and Markets Authority (ESMA). The timeline
required to obtain an equivalence decision varies across cases as the Commission is under no specific
obligation to decide under a specific dead line. The European Market Infrastructure Regulation
(EMIR), for example, entered into force in August 2012. It took up to 4 years for the Commission to
assess the equivalence regime of CCPs located in the United States before taking its decision in March
2016 (for a detailed overview of Commission equivalence decisions, see table in the Annex).
According to the SWD, COM has adopted 212 equivalence decisions covering a total of 32 countries.
Japan, US and Canada are the countries with the highest number of equivalence decisions.
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Box 3: Judicial control

The Court of Justice of the European Union (CJEU), as the judicial authority of the European
Union, has jurisdiction over all EU acts. As such, it ultimately ensures the correct
interpretation of primary and secondary EU law, and assesses validity of secondary law,
within the limits foreseen in the Treaties. In particular, under the specific legal conditions laid
down in Articles 263, 265, 267 TFEU, the CJEU is competent to adjudge actions for
annulment or give preliminary rulings pertaining to passporting rights in accordance with the
fundamental freedoms guaranteed in the Treaties, and in the light of EU directives or
regulations establishing the basic rules for particular economic activities.

The European Free Trade Area (EFTA) Court is an ad-hoc international court which has
jurisdiction with regards to EFTA States that are parties to the EEA agreement (at present
Iceland, Liechtenstein and Norway). The court is mainly competent to deal with infringement
actions against an EFTA State with regard to the implementation, application or interpretation
of EEA law rules. Thus the jurisdiction of the EFTA Court largely corresponds to the
jurisdiction of the CJEU over EU States, including passporting rights which are extended to
EEA countries.

The competence of the CJEU over the equivalence framework would depend on the case at
hand. In theory the legality of an equivalence decision taken by the Commission can be
reviewed by the CJEU (263 TFEU), as for any decision taken by the Commission. The CJEU
has jurisdiction when a Member State or an EU institution or, where the act is of direct and
individual concern to them, natural/legal persons (from an EU or a non-EU country) challenge
the legality of an equivalence decision based on specific legal grounds. The situation is
different in the case of inaction by the Commission. If the Commission does not take any
decision and is under no obligation to do so, possibilities for a legal action appear limited in
the absence of a challengeable act.
Other relevant documents published by the European Parliament:
 Understanding equivalence and the single passport in financial services, third-country access
to the single market, Marcin Szczepanski, European Parliamentary Research Service,
February 2017;
 The UK’s potential withdrawal from the EU and Single Market Access under EU financial
services legislation, Dr Olha Chrednychenko, University of Groningen, under the supervision
of Policy Department A, January 2017;
 Potential concepts for the future EU-UK relationship in financial services, Dr Christos V.
Gortsos, Law School, National and Kapodistrian University of Athens, under the supervision
of Policy Department A, January 2017
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Annex:
Equivalence Decisions taken by the European Commission (as of 21/12/2016)
(Source: European Commission)
EU Legislation
Markets in
Financial
Instruments
Regulation
(MiFIR)
(No. 2016/1033,
2014/600)
/Markets in
Financial
Instruments
Directive
(MIFID2)
(No. 2016/1034)
Legal base
Art 1 (9) MIFIR : central bank
exemption
Are these
‘passport-like’
rights?
No
Transactions with central banks
from third-countries can be
exempted from the scope of the
regulation (in the same way as
transactions with the European
System of Central Banks)
Art. 23 and 28 MIFIR:
Obligation to trade shares and
derivatives on regulated markets
Third-country trading venues may
be considered as regulated markets
for the purpose of these articles
Art. 33 MIFIR: Derivatives:
trade execution and clearing
obligations
Third country trading venues and
central counterparties ("CCPs")
recognised under EMIR may be
permitted access to EU CCPs and
trading venues
Art. 47 MIFIR: Investment firms
providing investment services to
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No equivalence decision has
been adopted
(MiFIR and MIFID II enter
into application in January
2018)
No
No equivalence decision has
been adopted
.
(MiFIR and MIFID II enter
into application in January
2018)
No
No equivalence decision has
been adopted
(MiFIR and MIFID II enter
into application in January
2018)
Third-country trading venues can
be accepted to fulfil the
requirements for trade execution
and clearing obligation on
derivatives
Art. 38 MIFIR: Access to the EU
for third-country trading venues
and CCPs
COM equivalence decisions
Yes
No equivalence decision has
been adopted
(MiFIR and MIFID II enter
into application in January
2018)
Yes
No equivalence decision has
been adopted
(MiFIR and MIFID II enter
into application in January
2018)
EU professional clients and
eligible counterparties
Non-EU firms will be able to
provide cross-border services from
outside the EU to professional
clients and eligible counterparties
established in the EU.
Art. 25(4) MIFID II: Assessment
of suitability and
appropriateness of clients
No
(MiFIR and MIFID II enter
into application in January
2018)
A third-country market can be
assessed equivalent to a regulated
market to appreciate whether
financial institutions have to
enquire about a person’s knowledge
and experience in the investment
field.
Capital
requirements
directive and
regulation (CRD
IV/CRR)
(No. 575/2013)
Article 107(4) CRR Credit
institutions /investment firms/
exchanges
Allows institutions
to treat
exposures
to
third
country
investment firms, credit institutions
and exchanges as exposures to
similar EU financial institutions.
No equivalence decision has
been adopted
No
For exposures to credit
institutions: Australia, Brazil,
Canada, China, Guernsey,
Hong Kong, India, the Isle of
Man, Japan, Jersey, Mexico,
the Principality of Monaco,
Saudi Arabia, Switzerland,
Singapore, South Africa and
the USA. (2014)
For exposures to investment
firms:
Australia, Brazil, Canada,
China, Hong Kong,
Indonesia, Japan (limited to
Type I Financial
Instruments Business
Operators), Mexico, South
Korea, Saudi Arabia,
Singapore, South Africa,
USA. (2016)
- For exposures to exchanges:
Australia, Brazil, Canada,
China, India, Indonesia,
Japan, Mexico, Saudi
Arabia, Singapore, South
Africa ,South Korea and the
USA
(2016)
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Articles 114, 115, 116
CRR: Exposures to central
governments, central banks,
regional governments, local
authorities and public sector
entities
The specific risk weights applicable
to
exposures
to
central
governments,
central
banks,
regional
governments,
local
authorities, and public sector
entities may apply to similar entities
located in third countries for the
purpose of calculation of the capital
ratio of EU financial institutions.
Article 142 CRR : credit
institutions/ investment firms
No
Equivalence decision for all
these third countries:
Australia, Brazil, Canada,
China, Guernsey, Hong
Kong, India, Isle of Man,
Japan, Jersey, Mexico,
Monaco, Saudi Arabia,
Singapore, South Africa,
Switzerland, USA (2014)
No
Equivalence decision on credit
institutions: Australia, Brazil,
Canada, China, Guernsey,
Hong Kong, India, Isle of
Man, Japan, Jersey, Mexico,
Monaco, Saudi Arabia,
Singapore, South Africa,
Switzerland, USA. (2016)
A subsidiary located in a thirdcountry can be taken into account
for the definition of ‘large financial
sector entity’.
Solvency II:
(No. 2009/138)
Art. 172 Solvency II: equivalent
treatment of third-country
reinsurers
Reinsurers from third-country can
be recognised as equivalent as EU
reinsures
Art. 227 Solvency II: equivalence
of third-country solvency rules
Third-countries solvency rules can
be considered equivalent for the
calculation of the consolidated
capital requirements of EU
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Yes
No
Equivalence decision on
investment firms: Australia,
Brazil, Canada, China, Hong
Kong, Indonesia, Japan
(limited to Type I Financial
Instruments Business
Operators), Mexico, South
Korea, Saudi Arabia,
Singapore, South Africa,
USA. (2016)
-Bermuda (2016)
-Japan (2015)
-Switzerland (2015)
Australia, Brazil, Canada,
Mexico and the United
States (2015)
- Switzerland (2015)
- Bermuda (2016)
-Japan (2016)
insurance groups present in thirdcountries.
Art. 260 Solvency II Parent
undertaking outside the EU
European
Markets
Infrastructure
Regulation
(EMIR)
(No 648/2012)
The EU can recognise the
equivalence of group supervision
exercised by a third-country
Art. 1(6) EMIR Central bank
Transactions with central banks
from third-countries can be
exempted from the scope of the
regulation (in the same way as
transactions with the European
System of Central Banks)
Art. 2a EMIR Regulated
markets:
Defines when a third-country
market is considered equivalent to a
regulated market.
Art. 13 EMIR Transaction
requirements:
Third-country regimes can be
considered as equivalent to avoid
complicating or conflicting rules on
financial transactions
Art. 25(6) EMIR: CCPs
procedure for recognition of
central counterparties (‘CCPs’)
established in third countries
Article
75
repositories
EMIR:
Trade
No
-Bermuda (2016)
-Switzerland (2015)
No
-Japan (2013)
-United States of America
(2013)
No
- United States of America
(2016)
No
No Equivalence Decision has
been adopted
Yes
-Australia (2014)
-Hong Kong (2014)
-Japan (2014)
-Singapore (2014)
-Canada (2015)
-Switzerland (2015)
-South Africa (2015)
-Mexico (2015)-Republic of
Korea (2015)
- USA (2016)
No Equivalence Decision has
been adopted
Third-country trade repositories
can be recognised equivalent to be
able to conclude international
agreements for the exchange of
information
on
derivatives
contracts
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Prospectus
Directive
(No. 2003/71)
European
Transparency
Directive
Art. 20(3): Equivalence of
prospectuses
Third-country
issuers:
third
countries may be authorised to
ensure
the
equivalence
of
prospectuses drawn up in that
country with this Directive
No
Art. 35 of Regulation 809/2004:
3rd country GAAP with IFRS:
No
Foreign issuers listed in the EU will
be allowed to continue preparing
their accounts using their own
accounting standards instead of
having to restate their financial
statements using IFRS.
Art. 23(4) Sub-para 3:
3rd country GAAP with IFRS:
equivalence
of
accounting
standards
-Canada, China, (South)
Korea (2012)
-Japan, USA (2008)
No
(No. 2013/50,
2004/109)
- Canada, China, (South)
Korea (2012)
-Japan, USA (2008)
Art. 23(4): General transparency
requirements:
Accounting
Directive
No Equivalence Decision has
been adopted
The third country where the issuer
is
registered
ensures
the
equivalence of the information
requirements provided for in this
Directive
Art. 46:
country-by-country
reporting:
Equivalence
of
third-country
reporting requirements
No
No Equivalence Decision has
been adopted
No
No Equivalence Decision has
been adopted
Article 5(6): Equivalence:
Credit rating agencies authorised
or registered in third country
comply with legally binding
requirements which are equivalent
to the requirements of
this
Regulation
No
Article 47(3): Adequacy of audit
framework:
Statutory
Audit Third countries may be recognised
as adequate to cooperate with the
Directive
competent authorities of Member
States on the exchange of audit
(No. 2014/56,
working papers or other documents
2006/43)
held by statutory auditors and audit
firms.
No
- Australia (2012)
-Argentina (2014)
-Brazil (2014)
-Canada (2012)
-Hong Kong (2014)
-Japan(2010)
-Mexico (2014)
-Singapore (2014)
-USA (2012)
Equivalence decision for all
these third countries Brazil,
Dubai, Guernsey, Indonesia,
Isle of Man, Jersey,
Malaysia, South Africa,
South Korea, Taiwan,
Thailand (2016)
(No. 2013/34)
Credit Rating
Agencies
Regulation
(No. 1060/2009,
462/2013)
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- Canada, Japan and
Switzerland (2010)
- Australia and the USA
(2010)
Equivalence of audit framework:
Art. 46(2) sets the framework for a
possible reliance on a third-country
oversight system in Europe, subject
to reciprocity.
No
-Mauritius, New Zealand,
Turkey (2016)
-United States of America
(2016)
-Abu Dhabi, Brazil, Dubai
International Financial
Centre, Guernsey,
Indonesia, Isle of Man,
Jersey, Malaysia, Taiwan,
Thailand (2013)
-Australia, Canada, China,
Japan, Korea, Singapore,
Africa, Switzerland (2011)
Article 46 (2) Equivalence:
transitional period
The Commission may decide that
the requirement of equivalence
referred to in paragraph 1 of this
Article is not complied with, it may
allow the third-country auditors
and third-country audit entities
concerned to continue their audit
activities in accordance with the
requirements of the relevant
Member
State
during
an
appropriate transitional period.
Art. 25(9): CSDs:
equivalent
system
for
the
recognition of CSDs authorised
under third-country legal regimes.
No
-Bermuda, Cayman Islands,
Egypt, Russia (2016)
No
No Equivalence Decision has
been adopted
Art.
2(4):
Central
bank
Regulation
on exemption:
Transparency of Exemption of the monetary
Securities
responsibilities of t third-country
Financing
central banks and bodies
Transactions
(SFTR)
No
No Equivalence Decision has
been adopted
Regulation on
Central Securities
Depositories
(CSDR)
(No. 909/2014)
(No. 2015/2365)
Art. 19: Trade repositories:
Equivalence and recognition of
trade repositories in Third
countries
11
No
No Equivalence Decision has
been adopted
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Benchmarks
Regulation
(No. 2016/1011)
Art.
21:
Transaction
requirements:
Equivalence of legal, supervisory
and enforcement arrangements of a
third country ensuring protection of
professional secrecy
Art. 30 (2): Requirements for
benchmark
administrators:
Administrators
authorised
or
registered in third country can be
recognized as equivalent to the
requirements under this Regulation
in order to be used in the Union
Art.
30(3):
Specific
administrators or benchmarks:
Third
countries
specific
administrators
or
specific
benchmarks
or
families
of
benchmarks can be recognized
equivalent to the requirements
under this Regulation, so they can
be used in the Union
Short Selling
Regulation
Art. 17(2): Requirements for
markets:
The
legal
and
supervisory
framework of a third country market
(No. 236/2012)
may be considered as equivalent so
it can be exempted for market
making activities and primary
market operations
Art 6(5): Exemption for monetary
Market Abuse
and public debt management
Regulation (MAR) activities:
(No. 596/2014)
No
No
No Equivalence Decision has
been adopted
No
No Equivalence Decision has
been adopted
No
No Equivalence Decision has
been adopted
No
Equivalence Decision for all
these countries :
Australia, Brazil Canada,
China, Hong Kong, India,
Japan, Mexico, Singapore,
South Korea, Switzerland,
Turkey, USA (2016)
This Regulation may not apply to to
certain equivalent public bodies and
central banks of third countries.
Art. 6(6): Exemption for climate
policy activities:
No
This Regulation may not apply to to
certain equivalent designated public
bodies of third countries that have
entered into an agreement with the
Union pursuant to Article 25 of
Directive 2003/87/EC
No Equivalence Decision has
been adopted
No Equivalence Decision has
been adopted
DISCLAIMER: This document is drafted by the Economic Governance Support Unit (EGOV) of the European Parliament based on publicly available
information and is provided for information purposes only. The opinions expressed in this document are the sole responsibility of the authors and do
not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised,
provided the source is acknowledged and the publisher is given prior notice and sent a copy. © European Union, 2017
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